B.W. v. CFS,

• Jurisdiction: Manitoba
• Judge: Scott, C.J.M., Hamilton and Freedman, JJ.A.
• Neutral Citation: 2009 MBCA 95
• Date: 25 May 2009
• Court: Court of Appeal (Manitoba)

B.W. v. CFS (2009), 245 Man.R.(2d) 186 (CA);

      466 W.A.C. 186

MLB headnote and full text

Temp. Cite: [2009] Man.R.(2d) TBEd. SE.036

W. (B.) (applicant/respondent) v. Child and Family All Nations Coordinated Response Network (respondent/appellant)

(AH 09-30-07084; 2009 MBCA 95)

Indexed As: B.W. v. Child and Family Services of Winnipeg

Manitoba Court of Appeal

Scott, C.J.M., Hamilton and Freedman, JJ.A.

September 25, 2009.

Summary:

Winnipeg Child and Family Services (the agency) notified B.W. that it intended to register her on the Child Abuse Registry. B.W. moved for an order declaring that her name not be placed on the Registry. At the hearing of the motion, B.W. moved for an order declaring the proceedings a nullity due to the agency's failure to comply with the time limits prescribed by ss. 9 and 14(1) of the Child Abuse Regulation.

The Manitoba Court of Queen's Bench, Family Division, in a decision reported at (2008), 234 Man.R.(2d) 197, granted the motion. The agency appealed and moved for an order expediting the hearing of the appeal.

The Manitoba Court of Appeal, per Chartier, J.A., in a decision reported at (2009), 236 Man.R.(2d) 105; 448 W.A.C. 105, granted the motion. B.W. sought solicitor and client costs of the trial.

The Manitoba Court of Queen's Bench, Family Division, in a decision reported at (2009), 238 Man.R.(2d) 200, awarded B.W. costs fixed in the amount of $15,000, inclusive of G.S.T. and disbursements and covering the cost of argument regarding costs. The agency appealed.

The Manitoba Court of Appeal dismissed the appeal from the judgment and from the order of costs.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Infants - Topic 3343

Child abuse - Child abuse register - Objection to registration - [See second Statutes - Topic 2417 ].

Infants - Topic 3343

Child abuse - Child abuse register - Objection to registration - In 2006, in response to an allegation raised in 2002, Winnipeg Child and Family Services (the agency) recommended that B.W. be placed on the Child Abuse Registry - B.W. objected to the registration - The motions judge declared the proceedings a nullity due to the agency's failure to comply with time limits prescribed by ss. 9 and 14(1) of the Child Abuse Regulation - The agency appealed - The Manitoba Court of Appeal dismissed the appeal - Sections 9 and 14(1) were directory, rather than mandatory, provisions - The agency was required, at a minimum, to substantially comply with the requirements - Factors to be considered in determining the effect of non-compliance with a directory provision were whether there had been substantial compliance and prejudice suffered by others due to any non-compliance - The court rejected the agency's assertion that there had been substantial compliance - The non-compliance with s. 9 was for 126 days and with s. 14(1) for 63 days where the time limit imposed in both sections was 30 days - The motions judge made no palpable and overriding error in finding a lack of substantial compliance - This alone was sufficient reason to nullify the proceedings - It was not necessary to address the issue of prejudice - However, the court indicated that the agency had raised a bona fide issue as to whether it was appropriate for the motions judge to consider prejudice suffered over the six years where B.W. sought nullification only for non-compliance of ss. 9 and 14(1) and not for delay generally - See paragraphs 61 to 68.

Infants - Topic 3352

Child abuse - Child abuse register - Costs - In 2006, in response to an allegation raised in 2002, Winnipeg Child and Family Services (the agency) recommended that B.W. be placed on the Child Abuse Registry - B.W. objected to the registration - Six pre-trials were conducted - The trial required 4.5 days - At the trial, B.W. moved for an order declaring the proceedings a nullity due to the agency's failure to comply with the prescribed time limits - The motion was granted - B.W. sought solicitor and client costs - The court awarded B.W. costs fixed in the amount of $15,000 - The agency's carriage of the case throughout was clearly below reasonable standards and fell within the exceptional circumstances that warranted an award of costs against an agency in the context of child protection proceedings - Solicitor and client costs were not appropriate as there was no bad faith - The amount of $15,000 was arrived at by doubling the Class III costs for all but one pre-trial and all but one day of trial to account for the waste of court time - The Manitoba Court of Appeal dismissed the agency's appeal - The awarding of costs was entitled to great deference - The agency failed to demonstrate that the motions judge had erred in principle or that the costs award was plainly wrong - The trial judge understood and explained the law and that costs were not awarded against the agency except in exceptional circumstances - See paragraphs 69 to 76.

Practice - Topic 7454

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Improper, irresponsible or unconscionable conduct - [See Infants - Topic 3352 ].

Practice - Topic 7468

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Against the Crown or governmental bodies - [See Infants - Topic 3352 ].

Practice - Topic 8301

Costs - Appeals - Appeals from order granting or denying costs - Variation of order of trial court - [See Infants - Topic 3352 ].

Statutes - Topic 502

Interpretation - General principles - Intention of legislature - [See second Statutes - Topic 2417 ].

Statutes - Topic 2417

Interpretation - Interpretation of words and phrases - General principles - "May" and "shall" - The Manitoba Court of Appeal discussed the interpretation of the word "shall" in ss. 9 and 14(1) of the Child Abuse Regulation relating to the procedure for placing a person's name on the Child Abuse Register - The word "shall" was presumptively imperative and imposed an obligation - The crucial debate was not whether "shall" was imperative, but whether there were consequences for not complying with the obligation - At issue here was whether ss. 9 and 14(1) were "directory" or "mandatory" - The object of the legislation in question and the effect of the ruling were crucial factors for determining whether the provisions were mandatory or directory - If a provision was mandatory, non-compliance with the obligation resulted in a nullity - However, non-compliance with an obligation contained in a directory provision did not mean that there was no consequence - Rather, it was within the court's discretion to decide if the non-compliance was to be disregarded or cured - The two most crucial factors to be considered when exercising that discretion were the extent of the non-compliance and of any prejudice resulting from the non-compliance - While substantial compliance favoured disregarding or curing any non-compliance, this depended on all of the circumstances, including prejudice to others - See paragraphs 34 to 49.

Statutes - Topic 2417

Interpretation - Interpretation of words and phrases - General principles - "May" and "shall" - In August 2002, in response to an allegation that B.W. had abused a child, Winnipeg Child and Family Services (the agency) commenced an investigation - In September 2006, the agency recommended that B.W. be placed on the Child Abuse Registry - A notice of intent to register was sent to B.W. in December 2006 - In February 2007, B.W. moved for an order declaring that her name not be placed on the Registry - At the hearing of the motion, B.W. moved for an order declaring the proceedings a nullity due to the agency's failure to comply with the time limits prescribed by ss. 9 and 14(1) of the Child Abuse Regulation - The agency conceded that it had not complied with the time frame set out, but asserted that the limits were "directory", rather than "mandatory" - The motions judge rejected the argument and declared the proceedings a nullity - The agency appealed - The Manitoba Court of Appeal agreed with the agency that ss. 9 and 14(1) were directory, not mandatory - Sections 9 and 14(1) used the word "shall" and were imperative - However, considering the purpose of the legislation and the effect of interpreting the provisions as mandatory, the court concluded that the legislature intended the provisions to be directory - It could not be that non-compliance by one day or perhaps one week as a result of human error, for example, should nullify a proceeding whose purpose was to protect children - That would be the effect if the provisions were mandatory - See paragraphs 50 to 60.

Statutes - Topic 5126

Operation and effect - Enabling Acts - Obligatory, mandatory, imperative and absolute Acts - What constitutes a mandatory power - [See both Statutes - Topic 2417 ].

Statutes - Topic 5128

Operation and effect - Enabling Acts - Obligatory, mandatory, imperative and absolute Acts - Effect of failure to comply with mandatory Act - [See both Statutes - Topic 2417 ].

Statutes - Topic 5130

Operation and effect - Enabling Acts - Obligatory, mandatory, imperative and absolute Acts - Whether mandatory enactment is obligatory or directory only - [See both Statutes - Topic 2417 ].

Statutes - Topic 5164

Operation and effect - Enabling Acts - Directory Acts - What constitutes - [See both Statutes - Topic 2417 ].

Words and Phrases

Shall - The Manitoba Court of Appeal held that the word "shall" in ss. 9 and 14(1) of the Child Abuse Regulation, Child and Family Services Act Regulations (Man.), Reg. 14/99, was directory and not mandatory in its effect - See paragraphs 50 to 60.

Cases Noticed:

J.W.F. v. Child and Family Services of Western Manitoba (2009), 245 Man.R.(2d) 176; 466 W.A.C. 176; 2009 MBCA 96, refd to. [para. 10].

Children's Advocate (Man.) v. Child and Family Services of Western Manitoba et al. (2005), 192 Man.R.(2d) 23; 340 W.A.C. 23; 2005 MBCA 11, refd to. [para. 29].

Ference et al. v. Wohlers et al. (2007), 214 Man.R.(2d) 222; 395 W.A.C. 222; 2007 MBCA 68, refd to. [para. 31].

Manitoba Language Rights Reference, [1985] 1 S.C.R. 721; 59 N.R. 321; 35 Man.R.(2d) 83, refd to. [para. 35].

Vancouver Island Railway, Re - see British Columbia (Attorney General) v. Canada (Attorney General).

British Columbia (Attorney General) v. Canada (Attorney General), [1994] 2 S.C.R. 41; 166 N.R. 81; 44 B.C.A.C. 1; 71 W.A.C. 1, refd to. [para. 38].

Blueberry River Indian Band and Doig River Indian Band v. Canada (Minister of Indian Affairs and Northern Development), [1995] 4 S.C.R. 344; 190 N.R. 89, refd to. [para. 38].

Caddy Lakes Cottagers Association v. Florence-Nora Access Road Inc. et al. (1998), 129 Man.R.(2d) 71; 180 W.A.C. 71 (C.A.), refd to. [para. 39].

Wolfrom v. Association of Professional Engineers and Geoscientists (Man.) (2001), 160 Man.R.(2d) 62; 262 W.A.C. 62; 2001 MBCA 152, refd to. [para. 39].

Bridgeland Riverside Community Association v. Calgary (City) and Patricia Investments Ltd. (1982), 37 A.R. 26; 135 D.L.R.(3d) 724 (C.A.), refd to. [para. 40].

Vialoux v. Registered Psychiatric Nurses Association (Man.) (1983), 23 Man.R.(2d) 310 (C.A.), refd to. [para. 43].

Hawrish v. Law Society of Saskatchewan et al. (1998), 168 Sask.R. 184; 173 W.A.C. 184; 161 D.L.R.(4th) 760 (C.A.), refd to. [para. 45].

M & D Farm Ltd. et al. v. Manitoba Agricultural Credit Corp., [1999] 2 S.C.R. 961; 245 N.R. 165; 138 Man.R.(2d) 161; 202 W.A.C. 161, refd to. [para. 46].

Regina (City) v. Newell Smelski Ltd. (1996), 152 Sask.R. 44; 140 W.A.C. 44 (C.A.), refd to. [para. 48].

Wascana Energy Inc. v. Gull Lake No. 139 (Rural Municipality) et al. (1998), 168 Sask.R. 58; 173 W.A.C. 58 (C.A.), refd to. [para. 48].

Friedrich v. Agricultural Credit Corp. of Saskatchewan (1988), 66 Sask.R. 107 (C.A.), refd to. [para. 48].

Central Mortgage and Housing Corp. v. Co-operative College Residences Inc. et al. (1975), 71 D.L.R.(3d) 183 (Ont. C.A.), refd to. [para. 48].

Washtronics Ltd. v. Winnipeg (City) et al. (1994), 97 Man.R.(2d) 258; 79 W.A.C. 258 (C.A.), affing. (1994), 94 Man.R.(2d) 21 (Q.B.), refd to. [para. 48].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 50].

Elsom v. Elsom, [1989] 1 S.C.R. 1367; 96 N.R. 165, refd to. [para. 63].

Homestead Properties (Canada) Ltd. v. Sekhri et al. (2007), 214 Man.R.(2d) 148; 395 W.A.C. 148; 2007 MBCA 61, refd to. [para. 63].

Mehling v. Director of Child and Family Services (Man.) et al. (1995), 100 Man.R.(2d) 47; 91 W.A.C. 47 (C.A.), refd to. [para. 70].

Child and Family Services of Winnipeg v. A.M.H. et al. (2002), 163 Man.R.(2d) 69; 269 W.A.C. 69; 2002 MBCA 8, refd to. [para. 72].

Director of Child and Family Services (Man.) v. A.C. (2008), 228 Man.R.(2d) 18; 427 W.A.C. 18; 2008 MBCA 18, refd to. [para. 72].

Hamilton v. Open Window Bakery Ltd. et al., [2004] 1 S.C.R. 303; 316 N.R. 265; 184 O.A.C. 209; 2004 SCC 9, refd to. [para. 76].

Little Sisters Book and Art Emporium v. Minister of National Revenue, [2007] 1 S.C.R. 38; 356 N.R. 83; 235 B.C.A.C. 1; 388 W.A.C. 1; 2007 SCC 2, refd to. [para. 76].

Statutes Noticed:

Child and Family Services Act Regulations (Man.), Child Abuse Regulation, Reg. 14/99, sect. 9 [para. 17]; sect. 14(1) [para. 24].

Child Abuse Regulation - see Child and Family Services Act Regulations (Man.).

Authors and Works Noticed:

Côté, Pierre-André, Interpretation of Legislation in Canada (3rd Ed. 2000), p. 236 [para. 35].

Driedger - see Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes.

Craies, William Feilden, Statute Law (7th Ed. 1971), p. 260 [para. 48].

Horton, Sydney B., The Manitoba Language Rights Reference and the Doctrine of Mandatory and Directory Provisions (1987), 10:3 Dal. L.J. 195, pp. 197, 198 [para. 37].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), generally [para. 31].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 74 [para. 35]; 75 [paras. 36, 37].

Counsel:

G.A. Stefanson and H.D. Cochrane, for the appellant;

J.J. Gindin, for the respondent.

These appeals were heard on May 25, 2009, by Scott, C.J.M., Hamilton and Freedman, JJ.A., of the Manitoba Court of Appeal. On September 25, 2009, Hamilton, J.A., delivered the following judgment for the court.